The Right to Review: Judicial Review consultation heats up

January 19, 2021

2 min read

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What's going on here?

The Government has launched an examination into the reformation and restriction of judicial review proceedings, aiming to limit the public’s ability to challenge the Government’s decisions.

What does this mean?

On Friday 31 July 2020, the Government commissioned the Faulks panel to examine if, and how, the judicial review process can be reformed. The panel is chaired by former minister Lord Edward Faulks QC. The review acts upon the Conservatives’ 2019 manifesto pledge to ensure that judicial review is “not abused to conduct politics…”. (See our article here).

Judicial review allows the public to challenge decisions made by the Government and by public bodies. Individuals and organisations affected by a decision can ask the Court to overturn it. The Court will do so if: the decision-maker didn’t have the legal power to make the decision, the decision-making involved an unfair procedure, or the decision was irrational.

The Faulks panel was instructed to examine how the Government can make it harder for individuals to successfully bring judicial review proceedings. Some measures that the panel has been considering are:

  • increasing costs; 
  • enforcing time limits on claims; 
  • restricting who can begin proceedings; 
  • restricting the appeals process; and 
  • making remedies harder to get.

What's the big picture effect?

Judicial review is an essential element of the UK’s administrative framework. It’s the main way in which the Government can be held accountable for its actions. Through judicial review, the Court prevents the Government from making decisions that unlawfully infringe upon individuals’ rights.  Any restriction of judicial review could mean that the Government’s controversial, and potentially unlawful, decisions may go unchecked. 

There is a historic and ongoing debate regarding the balance of power between the Government and the Courts. Some believe that the Courts have accumulated too much power in their ability to restrict Government action and that the traditional limits of judicial review should be reinstated. 

The more popular belief, however, is that the Government wants to prevent the Courts from overruling its decisions, even if they are unlawful. The Government’s annoyance at judicial intervention was fuelled by the Miller (No.1) and Miller (No.2) cases, in which the Supreme Court held that the Prime Minister could not withdraw the UK from EU treaties without Parliamentary legislation and that the Prime Minister’s prorogation (suspension) of Parliament in September 2019 was unlawful. 

Nevertheless, these high-profile judicial review cases are the minority; most proceedings involve individuals and public bodies, such as local authorities. Shadow justice secretary David Lammy has called the Faulks review, “a blatant attempt to disempower the public”

Whilst the panel has not yet published its findings, the Government’s desire to curb the Courts’ abilities is obvious. This is a worrying development for those who may need to rely on the Courts to enforce their rights. 

Report written by Catrin Trefor

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